CMA/392/2004 of P.Babu Rao Vs P.Shalini on 31 December 2014

HON'BLE SRI JUSTICE RAMESH RANGANATHANAND

HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHYCIVIL MISCELLANEOUS APPEAL No.392 OF 2004

JUDGMENT:(Per Hon’ble Sri Justice M. Satyanarayana Murthy)

Aggrieved by the dismissal order dated 27.12.2003, passed inO.P. No.273 of 2002 on the file of the Court of Judge, Family Court atSecunderabad (For short, ‘the trial Court’), the unsuccessful petitionertherein preferred this Appeal.

2. For convenience of reference, the ranks given to the parties inO.P. No.273 of 2002 will be adopted throughout this judgment.

3. The petitioner (husband), who is appellant herein, filed Petitionagainst the respondent (wife), under Section 13(1)(ia) of the HinduMarriage Act, 1955 (For short, ‘the Act’) for grant of decree of divorce,dissolving the marriage between the petitioner and respondent,alleging that their marriage was performed on 23.01.1991 as per Hindurites and customs; the marriage was consummated, led happy maritallife for a period of four years and during their wedlock blessed with twochildren, named Shashank and Devi Priyanka. Immediately after themarriage, respondent insisted the petitioner to set-up separate familyat Bhoiguda; accordingly, the petitioner set-up separate family.Whenever the mother of the petitioner visited the petitioner’s house,the respondent ill-treated her and used to beat her, whenever shestayed with the petitioner. After birth of female child by name DeviPriyanka, the respondent started harassing the petitioner and used tothreaten him to bring more money for maintenance of the family;though, the petitioner was in the habit of handing over entire earning tothe respondent for their maintenance but the petitioner used to spendthe amount lavishly without utilizing the same for family necessities.She developed habit of borrowing amount from the neighbors without intimation to the petitioner for her lavish expenditure. The respondentused to abuse the petitioner in filthy language without any reason.Thus, the petitioner subjected the respondent to harassment indifferent ways; she also used to go outside without prior intimationeither to the petitioner or to his mother, moving with M. SatyanarayanaReddy, sometimes calling said Satyanarayana Reddy to the house ofthe petitioner, used to take alcohol in his house and when the samewas objected by the petitioner, the respondent used to abuse thepetitioner in filthy language with the support of said SatyanarayanaReddy while saying that she had no faith in the Hindu marriage systemand traditions.

4. Despite attempts of the petitioner to convince the respondent tomend her ways, the respondent did not change her attitude and assuch in the month of January, 1999, she left the house of the petitionerwith children without intimating the petitioner, staying in the house ofSatyanarayana Reddy. Thereafter, the respondent used to spendmost of her time with said Satyanarayana Reddy, while staying withthe petitioner, creating disharmony in the family life, caused mentalpain to the petitioner. After the respondent left the matrimonialcompany of the petitioner, she filed a Suit in O.S. No.21 of 1999claiming maintenance for herself and the children, the trial Courtgranted maintenance, the petitioner complied the direction given inO.S. No.21 of 1999.

5. On one occasion, taking advantage of petitioner’s old agedmother, the respondent took away most of the house hold articlesbelonging to the petitioner; though the matter was complained to thePolice, the police did not take any action. While the matter stood thus,the petitioner’s mother died on 08.05.2002 and at that time therespondent and her henchmen came to the house, created nuisanceby abusing the petitioner and his sister in filthy language, made a vainattempt to take forcible possession of the house but proved futile due to timely intervention of petitioner’s neighbors and friends. These actsand omissions of the respondent caused mental cruelty to thepetitioner, finally prayed to grant decree of divorce.

6. The respondent filed counter admitting the marriage, maritalrelationship between the respondent and petitioner and begetting twochildren during their wedlock, inter alia contending that the respondentwas driven out from the petitioner’s house; since then living in thehouse of Satyanarayana Reddy and the relationship between therespondent and the Satyanarayana Reddy was only a tenant andlandlord; thereby, the question of her moving closely and going outsidewith Satyanarayana Reddy does not arise. She denied the specificacts and omissions of cruelty attributed to her contending that she isalways co-operative, helpful and dutiful towards the petitioner. On thecontrary, the petitioner used to harass the respondent, therebysubjected her to mental cruelty, neglected the respondent andchildren, forced her to file suit for maintenance and the respondentalso filed a Petition in O.P. No.223 of 2002, under Section 9 of the Act,for restitution of conjugal rights. Thus, the petitioner himself is guilty ofcruelty and prayed to dismiss the Petition.

7. Basing on the above pleadings, the trial Court framed thefollowing point for consideration:

Whether the petitioner has established that therespondent treated him cruelly, if so, whether thepetitioner is entitled for divorce on the ground of cruelty? (extracted)

8. During course of enquiry in O.P. No.273 of 2002, on behalf ofthe petitioner, PWs.1 and 2 were examined and on behalf of therespondent, RWs.1 and 2 were examined, but no documents weremarked on either side and in O.P. No.223 of 2002, on behalf of thepetitioner therein (respondent herein) PWs.1 and 2 were examined and Exs.P-1 to P-5 (sic) were marked and on behalf of the respondenttherein (petitioner herein) RW.1 was examined and no documentswere examined on his behalf.

9. Though the trial Court permitted both the parties to let in theirseparate evidence, upon hearing argument of both the counsel,considering oral and documentary evidence, dismissed O.P. Nos.273and 223 of 2002, by a common order, assigning its own reasons.

10. Against dismissal of O.P. No.223 of 2002, filed for restitution ofconjugal rights under Section 9 of the Act, the respondent-wife did notprefer any appeal; hence, the order passed in O.P. No.223 of 2002attained finality. When the trial Court enquired both the petitionsseparately, it would have passed separate orders in both the petitions.The procedure adopted by the trial Court in disposing of both thepetitions by a common order, when separate enquiry was conducted inboth the petitions, is an erroneous approach and it is contrary to thesettled principles of practice and procedure.

11. The petitioner-husband in O.P. No.273 of 2002 alone preferredthe present appeal raising various contentions. The main contentionsraised in the grounds of appeal are as follows:

1) When the Petition in O.P. No.223 of 2002, filed by therespondent-wife is dismissed, the trial Court would haveautomatically granted decree of divorce allowing O.P.No.273 of 2002 and the trial Court, without appreciatingthe oral and documentary evidence, placing implicit faithon the testimony of RWs.1 and 2, disbelieved thecontentions of the petitioner and committed an error;2) The acts and omissions attributed to the respondentwould certainly cause mental agony to the petitioner,which affords a ground to grant decree of divorce, but thetrial Court, on wrong appreciation of facts with reference to law, dismissed the Petition and prayed to allow theAppeal setting-aside the dismissal order dated27.12.2003, passed in O.P. No.273 of 2002.

12. During course of argument, Sri Ch. Ravindra Babu, learnedcounsel for the petitioner-appellant, would contend that when thePetition filed by the respondent-wife in O.P. No.223 of 2002 wasdismissed, disbelieving her contention that the petitioner herein haswithdrawn from her conjugal society, the trial Court would havegranted decree of divorce in favour of the petitioner. Even now, therespondent did not prefer any appeal against the dismissal orderpassed in O.P. No.223 of 2002, which attained finality; this Court hasto allow the appeal disbelieving the contentions of the respondent as itis not open to the respondent to raise such defence which was turneddown by the trial Court. Though the evidence of PW.1 is corroboratedwith the evidence of PW.2, who is a neighbor, the trial Court withoutassigning any reason to disbelieve their evidence, disbelieved thecase of the petitioner on erroneous appreciation of facts. The provedfacts on record are suffice to conclude that the respondent subjectedthe petitioner to mental cruelty, which is a ground to grant decree ofdivorce under Section 13(1)(ia) of the Act, but the trial Court, withoutappreciating the evidence and law, dismissed the Petition erroneously.

13. Per contra, the respondent, appearing as party-in-person,would contend that the evidence on record is insufficient to grantdecree of divorce, more particularly, to establish that the respondentsubjected the petitioner to cruelty, either physical or mental. In theabsence of proof of specific acts and omissions attributed to therespondent, the Court cannot infer from the circumstances that therespondent subjected the petitioner to cruelty. The approach of thetrial Court in deciding both the petitions, which were filed for separatereliefs on distinct causes of action, when they were enquiredseparately, is prima-facie erroneous. Moreover, in the Petition filed by

the respondent in O.P. No.223 of 2002, under Section 9 of the Act, sheclaimed decree for restitution of conjugal rights on the ground that shewas subjected to cruelty and driven out from the matrimonial house;since then, she was living in the house of Satyanarayana Reddy, whois examined as RW.2 and their relationship is only a tenant andlandlord. The said fact was disbelieved by the trial Court. However,the plea of the petitioner in O.P. No.273 of 2002 is that the respondentused to beat his mother whenever she stayed with him, and that sheused to spend the entire earnings lavishly moving with SatyanarayanaReddy allowing him to drink alcohol, eat non-vegetarian in the house,when the petitioner questioned such acts, she picked up quarrel andleft the house. Therefore, the specific acts mentioned by the petitionerin O.P. No.273 of 2002 are totally different from the reasons assignedby the respondent herein (petitioner in O.P. No.223 of 2002).Therefore, the findings of the trial Court in O.P. No.223 of 2002 wouldnot operate as res-judicata, and hence, the respondent is entitled toraise the specific contentions urged by her in the Petition.

14. Though, the Petition in O.P. No.273 of 2002 was filed underSection 13(1)(ia) of the Act, the pleas raised therein would go to showthat the petitioner also claimed divorce decree under Section 13(1)(ib)of the Act. Therefore, considering rival contentions, perusing oral anddocumentary evidence on record, the points that arise forconsideration are:

1. Whether the respondent subjected the petitioner tocruelty creating reasonable apprehension in hismind that it is harmful or endangerous for him to livewith the respondent, if so, is he entitled to a decree ofdivorce under Section 13(1)(ia) of the Act?

2. Whether the respondent deserted the petitionerwithout any reasonable cause with an intention toput an end to the matrimonial cohabitation, permanently, without the consent of the petitioner, ifso, is the petitioner entitled to a decree of divorceunder Section 13(1)(ib) of the Act?

15. POINT No.1: The specific allegations made against therespondent by the petitioner are that the respondent was not treatingthe petitioner properly and that she developed intimacy with oneSatyanarayana Reddy, who used to move with her freely and visit thehouse, dining at the residence of the petitioner while drinking alcoholetc., but the respondent denied the allegations made against her whilecontending that the petitioner himself drove her from the house for herfailure to meet the illegal demand for payment of dowry and she alsodenied commission of theft and clandestinely taking away hisvaluables and other articles.

16. The trial Court disbelieved the cruelty assigning its ownreasons. However, when the same is challenged now in this appeal, itis the duty of this Court to reappraise entire evidence to decide thealleged cruelty attributed to the respondent. The specific allegationsmade against the respondent are mentioned in the earlier paragraphsand when the Petition is filed under Section 13(1)(ia) of the Act, theonus of proof is on the petitioner to establish that he was subjected tocruelty by the respondent contending that there is reasonableapprehension in his mind that it is harmful or endangerous for him tolive with the respondent. As seen from the allegations, the respondentis extravagant or spending the entire earnings of the petitioner forherself without taking care of the petitioner but establishing said fact isdifficult for anybody. However, the petitioner, when examined as PW.1,reiterated what he pleaded in the Petition. On the other hand, when thepetitioner and respondent used to live in a rented house with hismeager earnings, the question of respondent spending the amount un-necessarily and lavishly does not arise, particularly in a city likeHyderabad. Even otherwise, such act would not amount to cruelty because it is in the nature of family feud. The other allegation is thatthe respondent was very close to Satyanarayana Reddy, who is thelandlord of the petitioner and respondent, for some time and, to provethe said fact, the petitioner himself examined as PW.1. As usual, hereiterated what he pleaded in the Petition, in his examination-in-chiefbut did not disclose any details of visits of Satyanarayana Reddy to thehouse of petitioner and that too the respondent was aged 41 years;whereas, said Satyanarayana Reddy was aged more than 69 years bythen. In the cross-examination, a suggestion was put to PW.1 that therespondent used to treat Satyanarayana Reddy as her father andSatyanarayana Reddy treated the respondent as his daughter, hedenied. Even assuming for a moment that Satyanarayana Reddy usedto visit the house of the petitioner, it does not amount to cruelty, as heis an elderly person and owner of the house. It is not the case of thepetitioner that the respondent developed illicit contact with saidSatyanarayana Reddy. In the absence of any such allegation andproof of the same, mere visit of Satyanarayana Reddy, house owner,who is an elderly person, does not amount to mental cruelty.Therefore, on this ground the decree of divorce cannot be grantedunder Section 13(1)(ia) of the Act.

17. The third allegation made against the respondent is that, in hisabsence, the respondent clandestinely took away all the belongings ofthe petitioner including L.I.C. policy, alleging the same he lodged acomplaint to the Police; after due investigation, it was referred as falsethat itself indicates the intention of the petitioner that he wanted to getrid of the respondent either by hook or crook and making seriousallegations against the respondent without any substance, he is notentitled to claim decree of divorce. On the other hand, the respondentfiled a suit in O.S. No.21 of 1999 claiming maintenance for herself andminor children which was decreed and the petitioner is payingmaintenance therein. When the Civil Court came to the conclusion

that the petitioner neglected the respondent and the children, it issufficient to hold that the petitioner himself responsible for the separateliving of the respondent and it appears that the present Petition is filedas a rouse to avoid payment of maintenance.

18. The petitioner examined PW.2, who is the alleged neighbor ofthe petitioner, but in the examination-in-chief she testified about theacts or omissions attributed to the respondent including moving closelywith Satyanarayana Reddy and his visit to the petitioner’s house etc.,picking up quarrel without any cause or reason with the petitioner. Inthe cross-examination, she admitted that she is the wife of P.B.Venkata Ramana @ Ramana, residing in the house bearing doorNo.1-8-115/D, Maclodguda, Chennoy Compound, Prenderghast Road,Secunderabad. She being the neighbour knew about PW.1 and it isfollowed by a suggestion that PW.1 is not her neighbor. Admittedly,she is not a tenant in the house, where the petitioner is living but she isthe tenant under the landlady by name Smt. B. Gowri Sood onpayment of a monthly rent of Rs.1,000/- and her husband is carryingstationery business which is hundred yards away to the petitioner’shouse (rented). In the cross-examination, learned counsel for therespondent disputed that PW.2 was not residing in the house bearingdoor 1-8-115/D, Maclodguda, Chennoy Compound, PrenderghastRoad, Secunderabad and put several suggestions. Admittedly, nopiece of paper is produced to establish that she is residing within thevicinity of the petitioner’s house. The petitioner is the resident of doorNo.1-8-113/2, Maclodguda, Chennoy Compound, Prenderghast Road,Secunderabad; whereas, PW.2 is allegedly resident of house bearingdoor No.1-8-115/D, Maclodguda, Chennoy Compound, PrenderghastRoad, Secunderabad as per the preamble of his affidavit. If PW.2 isresiding in house bearing door No.1-8-115/D, Paradise, M.G. Colony,Chennoy compound, Prenderghast Road, Secunderabad, credencecan be attached to the testimony of PW.2 but she did not produce any

iota of proof that she is residing in that house. However, the rentedhouses of the petitioner and PW.2 are intervened by one house. PW.2admitted that her house is hundred yards away from the rented houseof the petitioner and at present an apartment is under constructionbetween the houses of petitioner and PW.2. Thus, PW.2 is not theimmediate neighbor to the petitioner and staying almost hundred yardsaway to the petitioner’s house. In such case, it is difficult for any of theneighbor, who is staying hundred yards away to the house of thepetitioner to observe the alleged cruelty and visit of SatyanarayanaReddy occasionally, consuming food, alcohol etc., as alleged in thePetition. If she is an immediate neighbor, there is every possibility toobserve what is happening in the house of the petitioner. In normalcourse of events, neighbors may incidentally notice what is happeningin the surrounding houses but, it cannot be the routine duty of anyneighbour, who is staying hundred yards away to the petitioner’shouse and watching what is going on in the house of the petitioner.Therefore, the evidence of PW.2 is artificial and much credence cannotbe attached to her evidence for the reason that she is not an immediateneighbor and even she did not produce any material to establish thatshe is residing in house bearing door No.1-8-115/D, Maclodguda,Chennoy Compound, Prenderghast Road, Secunderabad.

19. The evidence of PW.1 is totally interested for the reason that heis going to get benefit out of this litigation and whereas the evidence ofPW.2 is not worthy of credence for the reason that she is not theimmediate neighbor to observe what is happening in the house of thepetitioner.

20. While dealing with similar circumstances, the Apex Court inViswanath Agrawal Vs. Sarla Viswanath Agrawal[[1]]ruled asfollows:

“32. ………….At this juncture, we may unhesitantly state that the trial court as well as the first appellate court havedisbelieved the evidence of most of the witnesses cited onbehalf of the husband on the ground that they are interestedwitnesses. In a matrimonial dispute, it would be inappropriateto expect outsiders to come and depose. The familymembers and sometimes the relatives, friends andneighbours are the most natural witnesses. The veracity ofthe testimony is to be tested on objective parameters and notto be thrown overboard on the ground that the witnesses arerelated to either of the spouse. Exception has been taken bythe courts below that the servants of the house should havebeen examined and that amounts to suppression of the bestpossible evidence…………….”

21. In view of the principles laid down by the Apex Court inViswanath Agrawal[1],the best witnesses are the family members,relatives and friends, for whom there is every possibility to know aboutthe family affairs. But, for the reasons known to the petitioner, he didnot examine any of his friends, family members and relatives toestablish the alleged cruelty; strangely, examined a person who isallegedly residing 100 yards away to the rented house of the petitioner.Therefore, the evidence of PW.2 is highly doubtful and cannot berelied upon to grant a decree of divorce on the ground of cruelty.

22. When the petitioner claimed divorce on the ground of crueltyunder Section 13(1)(ia) of the Hindu Marriage Act, the initial onus isupon him to prove the acts or omissions of the respondent amountingto cruelty either physical or mental. Mental cruelty is nothing but mentalpain of an individual depending upon his social life, surroundingcircumstances and sense of reaction of an individual.

23. The word ‘cruelty’ is not defined in the Hindu Marriage Act butthe Apex Court, in Savitri Pandey Vs. Prem Chandra Pandey[[2]],ruled as follows:

“Cruelty has not been defined under the Act but in relation tomatrimonial matters it is contemplated as a conduct of suchtype which endangers the living of the petitioner with the

respondent. Cruelty consists of acts which are dangerous tolife, limb or health. Cruelty for the purpose of the Act meanswhere one spouse has so treated the other and manifestedsuch feelings towards her or him as to have inflicted bodilyinjury, or to have caused reasonable apprehension of bodilyinjury, suffering or to have injured health. Cruelty may bephysical or mental. Mental cruelty is the conduct of otherspouse which causes mental suffering or fear to thematrimonial life of the other. “Cruelty”, therefore, postulates atreatment of the petitioner with such cruelty as to cause areasonable apprehension in his or her mind that it would beharmful or injurious for the petitioner to live with the otherparty. Cruelty, however, has to be distinguished from theordinary wear and tear of family life. It cannot be decided onthe basis of the sensitivity of the petitioner and has to beadjudged on the basis of the course of conduct which would,in general, be dangerous for a spouse to live with the other.The averments made in the petition and the evidence led insupport thereof clearly show that the allegations, even if heldto have been proved, would only show the sensitivity of theappellant with respect to the conduct of the respondent whichcannot be termed more than ordinary wear and tear of thefamily life.”

24. In Sujata Uday Patil Vs. Uday Madhukar Patil[[3]], the ApexCourt held as follows:

"Where there is proof of a deliberate course of conduct on the part of one spouse, intended to hurt and humiliate the otherspouse, and such a conduct is persisted, cruelty can easilybe inferred. Neither actual nor presumed intention to hurt theother spouse is a necessary element in cruelty."

25. In Vinita Saxena Vs. Pankaj Pandit[[4]], the Apex Court whiledealing with similar circumstances, held as follows:

“The legal concept of cruelty, which is not defined by statute,is generally described as conduct of such character as tohave caused danger to life, limb or health (bodily and mental)or to give rise to reasonable apprehension of such danger.The general rule in all questions of cruelty is that the wholematrimonial relations must be considered, that rule is of aspecial value when the cruelty consists not of violent act butof injurious reproaches, complains accusations or taunts. It may be mental such as indifference and frigidity towards wife,denial of a company to her, hatred and abhorrence for wife orphysical, like acts of violence and abstinence from sexualintercourse without reasonable cause. It must be proved thatone partner in the marriage, however mindless of theconsequences, has behaved in a way which the other spousecould not, in the circumstances, be called upon to endure, andthat misconduct has caused injury to health or a reasonableapprehension of such injury. There are two sides to beconsidered in case of cruelty. From the appellant's side, oughtthis appellant to be called on to endure the conduct? From therespondent's side, was this conduct excusable? The Courthas then to decide whether the sum total of the reprehensibleconduct was cruel.”

26. In another decision of the Apex Court, in Naveen Kohli Vs.Neelu Kohli[[5]], the Apex Court defined the word ‘cruelty’ and held asfollows:

“To constitute cruelty, the conduct complained of should be"grave and weighty" so as to come to the conclusion that thepetitioner spouse cannot be reasonably expected to live withthe other spouse. It must be something more serious than"ordinary wear and tear of married life". The conduct takinginto consideration the circumstances and background has tobe examined to reach the conclusion whether the conductcomplained of amounts to cruelty in the matrimonial law.Conduct has to be considered, in the background of severalfactors such as social status of parties, their education,physical and mental conditions, customs and traditions.”

27. By applying the principles laid down by the Apex Court inNaveen Kohli[5] , to decide the cruelty the social status of the parties,their education, customs and traditions and physical and mentalconditions of the parties have to be taken into consideration. In view ofthe facts and circumstances, it is evident that the petitioner hails from amiddle class family with minimum educational qualification so also therespondent but without any belief in traditions and customs. In suchcase, the acts and omissions attributed to the respondent may notcause mental agony creating reasonable apprehension in the mind of the petitioner that it is harmful or endangerous for him to live with therespondent.

28. In a recent judgment of the Apex Court in Samar Ghosh Vs.

Jaya Ghosh[[6]], the Apex Court while defining the word cruelty, laiddown some instances of human behavior relevant for dealing withcases of mental cruelty and gave illustrative instances though notexhaustive, which are 14 in number, they are as follows:

“(ix) Mere trivial irritations, quarrels, normal wear andtear of the married life which happens in day-to-day lifewould not be adequate for grant of divorce on the groundof mental cruelty.

(xiv) Where there has been a long period of continuousseparation, it may fairly be concluded that thematrimonial bond is beyond repair. The marriagebecomes a fiction though supported by a legal tie. Byrefusing to sever that tie, the law in such cases, does notserve the sanctity of marriage; on the contrary, it showsscant regard for the feelings and emotions of the parties.In such like situations, it may lead to mental cruelty.”

29. In view of the principles laid down by the Apex Court in thedecisions cited supra, it is clear that the dispute is in the nature offamily feud and no evidence is available on record to prove that theacts and omissions attributed to the respondent creates anyreasonable apprehension that it is harmful or endangerous for thepetitioner to live with the respondent.

30. The petitioner also raised a specific contention that therespondent, as on the date of death of mother of the petitioner, alongwith her supporters including Satyanarayana Reddy came to hishouse and made an attempt to occupy his house but due to timelyintervention of the neighbors, highhanded acts of the respondent wereprevented. This allegation cannot be accepted for the reason that thepetitioner is living in a rented house and question of occupation of his house does not arise as it does not belong to him. Hence, disbelievingthis allegation, we are inclined to conclude that the acts and omissionsattributed to the respondent by the petitioner are only to seek divorceon the ground of cruelty. Accordingly, the point is decided in favour ofthe respondent-wife and against the petitioner-husband

31. POINT No.2: The petitioner also claimed divorce on the groundof desertion making a specific allegation that the respondent in themonth of January, 1999, left the matrimonial house with childrenwithout intimating the petitioner and staying in the house ofSatyanarayana Reddy. The present Petition before the trial Court wasfiled in the year 2002. In the entire Petition, no allegation is made thatthe respondent left the matrimonial house with an intention to put anend to the matrimonial cohabitation permanently against the consentor wish of the petitioner. The respondent denied the same bycontending that she is willing to join the petitioner though the petitionermade a false complaint against her for the alleged commission of theft,which was referred as false after due investigation, and caused mentaltorture to her.

32. In the evidence of PW.1, there is nothing pointing out that therespondent left the matrimonial home without his consent and stayingwith Satyanarayana Reddy. In the examination-in-chief, at Page 2, asusual, PW.1 asserted that in the month of January, 1999 therespondent left the matrimonial home along with children withoutintimating to him, staying in the house of Satyanarayana Reddy, butthis fact was not established by examining anybody. However, therespondent in her evidence emphatically denied the said desertion; onthe other hand, the Petition in O.P. No.223 of 2002, filed by therespondent under Section 9 of the Act for restitution of conjugal rightsis earlier in point of time to the Petition in O.P. No.273 of 2002, filed bythe petitioner, under Section 13(1)(ia) of the Act for divorce. If really,the respondent had no intention to live with the petitioner to lead marital life, question of filing of Petition in O.P. No.223 of 2002 underSection 9 of the Act before the trial Court, does not arise. Filing of aPetition by the respondent under Section 9 shows her bona fideintention to live with the petitioner to lead marital life but filing of thePetition by the petitioner is only as an afterthought somehow to resistthe claim of the petitioner in O.P. No.223 of 2002, which is earlier inpoint of time.

33. When the respondent filed a Petition under Section 9 of theHindu Marriage Act, making a specific allegation that the petitionerherein has withdrawn from the conjugal society without anyreasonable cause and living separately, it is for the petitioner herein,respondent in O.P. No.223 of 2002, to establish that there is areasonable or sufficient cause for his separate living. However, the trialCourt dismissed the Petition. If the Court finds that there is no groundto grant a decree of divorce believing the respondent’s plea, therespondent herein is entitled to decree for restitution of conjugal rightsbut the trial Court dismissed both the Petitions by a common orderthough enquiry was conducted separately.

34. Viewed from any angle, the pleadings and evidence is silentwith regard to intention of the respondent to live separately with anintention to put an end to the matrimonial cohabitation, permanently,without the consent of the petitioner. Therefore, the fact, even if therespondent is living separately since January, 1999 that by itself is notsufficient to grant decree of divorce on the ground of desertion underSection 13(1)(ib) of the Act.

35. According to Section 13(1)(ib) of the Act, when a spouse isliving separately, without any reasonable cause, for a period of notless than two years prior to filing of the Petition, it is a ground to grantdecree of divorce. The word ‘desertion’ is not defined under the HinduMarriage Act, separately, but under the explanation to Section 13(1)(ib)

of the Hindu Marriage Act, the word ‘desertion’ is explained as follows:

“In this sub-section, the expression “desertion” means thedesertion of the petitioner by the other party to the marriagewithout reasonable cause and without the consent or againstthe wish of such party, and includes the willful neglect of thepetitioner by the other party of the marriage, and itsgrammatical variations and cognate expression shall beconstrued accordingly.”

36. In Savitri Pandey[2], the Apex Court defined the word ‘desertion’as contained under Section 13(1)(ib) of the Hindu Marriage Act, which is as follows:

“‘Desertion’, for the purpose of seeking divorce under the Act,means the intentional permanent forsaking and abandonmentof one spouse by the other without that other’s consent andwithout reasonable cause. In other words, it is a totalrepudiation of the obligations of marriage. Desertion is not thewithdrawal from a place but from a state of things. Desertion,therefore, means withdrawing from the matrimonialobligations, i.e., not permitting or allowing and facilitating thecohabitation between the parties. The proof of desertion has tobe considered by taking into consideration the concept ofmarriage which in law legalizes the sexual relationshipbetween man and woman in the society for the perpetuation ofrace, permitting lawful indulgence in passion to preventlicentiousness and for procreation of children. Desertion isnot a single act complete in itself, it is a continuous course ofconduct to be determined under the facts and circumstancesof each case. If a spouse abandons the other in a state oftemporary passions for example, anger or disgust withoutintending permanently to cease cohabitation, it will not amountto desertion.”

37. In another decision of the Apex Court, in Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri Devi[[7]], the Apex Court defined the word ‘desertion’ and held as follows:

“’Desertion’ in the context of matrimonial law represents alegal conception. It is difficult to give a comprehensivedefinition of the term. The essential ingredients of this offencein order that it may furnish a ground for relief are:

1. the factum of separation;

2. the intention to bring cohabitation permanently to an end – animus decidendi;

3. the element of permanence which is a primecondition requires that both these essential ingredients shouldcontinue during the entire statutory period.”

38. In the earliest decision of the Apex Court in Bipinchandra

Jaisinghbai Shah Vs. Prabhavati[[8]], the Apex Court held that if aspouse abandons the other in a state of temporary passion, forexample, anger or disgust without intending permanently to ceasecohabitation, it will not amount to desertion

39. In Lachman Utamchand Kirpalani Vs. Meena @ Mota[[9]],theLarger Bench of the Apex Court held that the desertion in its essencemeans the intentional permanent forsaking and abandonment of onespouse by the other without the other’s consent, and withoutreasonable cause. For the offence of desertion so far as the desertingspouse is concerned, two essential conditions must be there: (1) thefactum of separation, and (2) the intention to bring cohabitationpermanently to an end (animus deserendi). Similarly, two elementsare essential so far as the deserted spouse is concerned: (1) theabsence of consent, and (2) absence of conduct giving reasonablecause to the spouse leaving the matrimonial home to form thenecessary intention aforesaid. For holding desertion as proved theinference may be drawn from certain facts which may not in anothercase be capable of leading to the same inference; that is to say thefacts have to be viewed as to the purpose which is revealed by thoseacts or by conduct and expression of intention, both anterior andsubsequent to the actual acts of separation.

40. In view of the principles laid down by the Apex Court in thedecisions referred supra, it is for the petitioner to prove that therespondent is living separately for a period of not less than two years,immediately prior to filing of the Petition, with an intention to put an end to the matrimonial cohabitation permanently but, the petitioner thoughalleged that the respondent has withdrawn from his conjugal society inthe month of January, 1999, failed to establish the animus deserendii.e., intention to desert, which is the main requirement for grant ofdecree of divorce under Section 13(1)(ib) of the Act. On perusal of theentire material available on record, including the order underchallenge, we find no perversity or illegality warranting interference ofthis Court. Hence, this point is decided in favour of the respondent-wife and against the petitioner-husband.

In the result, the Civil Miscellaneous Appeal is dismissedconfirming the decree and order dated 27.12.2003, passed in O.P.No.273 of 2003, by the learned Judge, Family Court at Secunderabad.

In consequence, the miscellaneous petitions, if any, pending inthis appeal, shall stand dismissed. No order as to costs.

_____________________________

RAMESH RANGANATHAN, J

_____________________________

M. SATYANARAYANA MURTHY,JJ

Date: 31-12-2014.Dsh

HON'BLE SRI JUSTICE RAMESH RANGANATHAN

AND

HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY

8

CIVIL MISCELLANOEUS APPEAL No.392 OF 2004

(Judgment of the Division Bench delivered byHon’ble Sri Justice M. Satyanarayana Murthy)

Date. 31-12-2014

DSH

31122014

[1](2012) 7 SCC 288(2012) 7 SCC 288

[2]AIR 2002 SC 591AIR 2002 SC 591

[3](2006) 13 SCC 272(2006) 13 SCC 272

[4](2006) 3 SCC 778(2006) 3 SCC 778

[5]AIR 2006 SC 1675AIR 2006 SC 1675

[6]2007 (4) ALD 11 (SC)2007 (4) ALD 11 (SC)

[7]AIR 2002 SC 88AIR 2002 SC 88

[8]AIR 1957 SC 176AIR 1957 SC 176

[9]AIR 1964 SC 40AIR 1964 SC 40